Keefe, Campbell & Associates, LLC

Editor’s comment: Hard to argue with this outcome and it is amazing it made it all the way to the Seventh Circuit. A group of workers went to breakfast at a restaurant named Nick’s during the middle of their shift. It appears from the record they didn’t clock out and once the deception was discovered, they got the boot. We know you are surprised to hear it but they then sued, claiming it wasn’t due to deception; it was discrimination due to race and national origin.

In Antonetti v. Abbott Laboratories, (No. 08-1647 April 21, 2009), the Seventh Circuit Court of Appeals ruled the District Court did not err in granting Defendant-employer’s motion for summary judgment in a Title VII action alleging Defendant terminated Plaintiffs on account of their race and national origin for submitting false time cards based on their attendance at off-site breakfast during scheduled shift.

While Plaintiffs contended their terminations were discriminatory since Defendant did not terminate another co-worker who had also attended the breakfast, Plaintiffs’ proposed comparable worker was not similarly situated to Plaintiffs where, unlike Plaintiffs, the co-worker didn’t lie about going to the breakfast. He initially admitted to his supervisor that he had attended the breakfast and did not submit false time card.

If you have thoughts or comments on handling similar employment discrimination matter, send a reply.

Editor’s comment: The Employee Free Choice Act or EFCA bills HR 1409 and S. 560 were introduced into both chambers of Congress March 10, 2009. We consider the drafters to have named it “free choice” as a total PR sop—this is anything but a “free choice” law. If you aren’t familiar, EFCA is the “card check” legislation that would allow unions to use strong-arm tactics to bully and bluff workers into signing cards to form unions. Try to picture five union organizers coming to your work station to pressure you to sign the card to allow the union to take over your workplace. It would be legal under this new federal law, if passed.

We ask the rhetorical question—if it is that great a concept, why not drop the secret ballot process for all local, state and national elections and start holding EFCA card-check elections for all of them from now on? Why not elect mayors and governors and presidents with similar strong-arm tactics? Try to imagine twenty folks showing up to your home, banging on your door and then telling you who to vote for by signing their draft ballot. Is that the democracy you want in this country? Is that the democracy our forefathers fought and died to create?

The EFCA bills were introduced with very little if any change from the legislative bills previously defeated. The legislation as introduced would the following:

• Eliminate compelled secret ballot elections when a union presents signed authorization cards from a simple majority of employees to the NLRB.
• The union would automatically gain recognition and could require bargaining to start as soon as ten days after recognition is certified.
• If first contract negotiations do not result in a labor contract within 120 days, the government will appoint a panel of arbitrators to arbitrate a first contract that will be put in place for two years.
• Fines against employers only for unfair labor practices would be increased up to $20,000 per incident.

Early debate in the media has both sides focused on the elimination of the compelled secret ballot election for union representation. Under current law, an election is held when a union presents signed authorization cards reflecting 30% or more of workers to the NLRB. Unions argue the election process is skewed in favor of the employers. In contrast, unions win over 55% of elections held. EFCA would give recognition to a union without the option of a secret ballot if they can present 50% plus one signed authorization cards. Proponents of the legislation adamantly deny opponents’ assertion that EFCA removes the secret ballot election. However at the same time they defend the removal of compelled secret ballot elections as the best way to organize. Opponents of the legislation, comprised of both major employers and employer groups, argue under EFCA the union would never consent to an election if it does not have to–if it gathers the requisite majority of authorization cards.

Although the bills have now been introduced, they are not expected to be taken up by either house into summer. Political attention to the Employee Free Choice Act shifted to the U.S. Senate during the last thirty days. House Speaker Pelosi put the EFCA debater squarely on the shoulders the Senate by maintaining the U.S. House would pass this legislation if and when the Senate passes it. Since the House passed this same legislation in 2007 before it failed in the Senate later that year, she saw no reason for the House to pass it again before the Senate did.

In the Senate, the 60 votes EFCA supporters need to invoke cloture and ensure an up-or-down floor vote on EFCA are falling farther and farther away. Several Senators that previously supported EFCA have withdrawn their support. As of this update, Senators Specter (R-PA), Carper (D-DE), Warner (D-VA), Lincoln (D-AK), Landrau (D-LA), Feinstein (D-CA) and Webb (D-VA) have all backed off from supporting cloture and/or EFCA. Other Senators are now openly questioning support of EFCA as it currently is proposed.

As noted in a previous KC&A Updates, there may be inquiries on whether a compromise bill can be hammered out between both sides—we consider it fatally flawed. Business and business associations including the Illinois State Chamber of Commerce hold there can be no compromise on this wildly undemocratic piece of legislation. Keefe, Campbell & Associates encourages its readerss to continue to contact their U.S. Representatives and Senators and express opposition to this bill.

Editor’s comment: We noted a great article in www.law.com, where members of the U.S. House were joking with the members of the U.S. Supreme Court about opening up the courts to public scrutiny. The annual House hearing called to consider the Supreme Court’s budget request began with its usual rituals last week. Members of Congress and members of the Court–Justices Clarence Thomas and Stephen Breyer–praised the occasion as a historic meeting of two branches of government. The hearing proceeded in the same vein for a while, full of blandishments and collegiality. But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart. He made a plea to the Court to ramp up its transparency and public face. Other committee members proceeded to pile on; telling the Court that the momentum toward openness the Internet has created is so strong that the Court would be wise not to resist it. By the end, Justices Breyer and Thomas could have been forgiven if they started to think they’d been hit by a coordinated attack from wild-eyed techies.

The instigator was conservative Rep. John Culberson, R-Tex. You may note how close his name is to Illinois Senate President John Cullerton, D-Chicago. U.S. Rep. Culberson urged the Court to go to the next level of transparency. The justices had already talked about the occasional release of oral argument audio tapes and of plans for an improved Supreme Court web site. Culberson said there would be “no logical distinction” between what the Court has already done, and streaming the video of oral argument on the Court’s web site. Suddenly, the old debate over cameras in the Supreme Court had been resurrected.

“It’s a very easy matter on the Internet,” Culberson said, and to prove it, he took out a device, aimed at the justices and announced at that very moment, their visages were being seen live on the Internet. Culberson’s video is available on the web. The justices were startled, but smiled for the camera. C-SPAN’s cameras were also rolling. “The next American revolution is going to come through the Internet,” Culberson told the justices. “I encourage you to break down that wall. It’s as easy as pushing this button.”

The justices retreated into their usual arguments against camera access. As he often does, Breyer said the current members of the Court are just temporary stewards of a cherished institution who don’t want to damage it in anyway. Before deciding if the gains are worth the risk, Breyer said “social science research” is needed. Later, Culberson implored Breyer and Thomas, “Don’t wait for the social science research. Trust your hearts.” Justice Thomas also spoke of the Court’s cautious nature, telling Culberson that on the current Court, there is “no one who will aggressively push the institution in a way that will result in some diminishment of the institution.” But he did say that within the Court, “there has been quite a bit of discussion” about the issue, especially since legislation that would require the Court to allow cameras was introduced in Congress.

We live in a state where the judiciary and all administrative bodies are almost allergic to cameras. In some Illinois counties, visitors are not allowed to take camera-phones into the building for fear they may actually or accidentally use them to record anything. In a democratic society, we assert people have a right of access to courts and the Workers’ Compensation Commission. Anyone can sit in the in a hearing room and watch a part or the whole of a trial or oral arguments on appeal. There is therefore no constitutional reason why all trials, hearings and oral arguments should not be televised or streamed on the internet. We vote for IWCC-TV on their otherwise super-charged web site!

At the moment only a few people can take advantage of access to the Commission and courts. As courts and our Workers’ Compensation Commissions sit during the week, it is difficult for people in full-time employment to watch a trial or oral argument. Travelling to courts and hearings across the state is costly. The hearing and oral argument rooms for the public have only a limited number of spaces. We should not have to make such sacrifices of time and money in order to enjoy democratic rights. In addition, the events in court are often difficult for non-lawyers to understand. Coverage on cable or local television could include commentary that would make watching a trial or oral argument a more profitable and educational experience. In the age of the television, and streaming video on the internet, we should utilize modern technology to enhance the rights of the citizens. We would also feel televised hearings and oral arguments would improve the professionalism and demeanor of the attorneys and hearing officers who participate.

We also hope to see the day that Rule 23 is greatly limited by our Illinois Appellate Court, Workers’ Compensation Division who appear to actually “publish” or openly disseminate about one in ten of their rulings. We feel appellate court oral arguments should be streamed on the internet or made available to local cable TV. We also feel all court rulings, some of which are lengthy, fully researched and carefully written, cannot and should not be hidden from the public and left non-precedential. As we have said numerous times, no one pays the thousands of dollars necessary to prosecute a claim on either side of the bar to our Appellate Court without it being vitally important to the parties and other members of Illinois society and the larger legal community. What is most galling is the courts truly have the resources to “publish” all of their rulings—to the extent they “non-publish” numerous decisions, they are spending public funds to hide what they are doing.

We ask the light of sunshine be brought to all judicial proceedings, including the Illinois Workers’ Compensation Commission and reviewing courts. We assert the opposite approach that remains the rule of law across this state leaves court observers and other citizens with the strong impression the courts have something to hide and remain amenable to corruption and hidden rulings. We would appreciate your thoughts and comments.

Editor’s comment: Last week, we had a client with a Spanish-speaking-only claimant ask us if the contracts could be drafted in Spanish and/or how to best facilitate negotiations and closure of the file. We pointed out we have at least three staff members who are fluent in Spanish and could work out any details relating to discussion and negotiation of pro se settlement approvals. We do not charge anything for this service.

If such claimant appears before the Arbitrator assigned seeking approval with our attorney, we will need to have a professional interpreter present—our staff member would have a conflict of interest in translating at the hearing. However, we know a number of excellent Hispanic interpreters available on short notice who could fill the bill.

Keefe, Campbell & Associates gets pro se settlements approved faster than any other defense firm in this state. If you settle with a claimant and he or she is available to be downtown tomorrow, we can get it approved.

Downstate, we can get them approved the next day the Arbitrator assigned is sitting.

Full cost for pro se approvals is $250 in Chicago and $350 anywhere else in Illinois.

Editor’s comment: While looking up other things, we came across an interesting concept at the pre-eminent website for U.S. workers’ comp observers. Take a look at

http://reduceyourworkerscomp.com//calculator.php?total=10%2C000&margin=3&calculate=Calculate.

This online tool allows one to quickly learn the actual cost of workers’ comp benefits for risk managers. For example, if your organization has a 3% profit margin and your worker suffers in injury costing $10,000 in benefits, you need to make $333,333.00 to catch up to even following such a loss.

We hope this concept encourages our readers to see there is a real cost to workers’ comp. The first and most abiding concern for risk managers is to spot and stop risks before they arise. Each year in the place of work there may be more and more reported injuries, many of these are injuries that could have been prevented by either the employee or employer. Some of the injuries and incidents are minor but others may be quite serious and in many cases lead to death or the person being injured so badly that they can no longer continue in the job of their choice. In this day and age of health and safety in the work place many of the injuries that happen are avoidable and it is important to see the overall cost to you and your company.

After suffering an Illinois workers’ compensation loss, if you need veteran defense counsel to tell you how to aggressively handle and close Illinois litigated or non-litigated claims, send a reply. If you have thoughts and comments about the “sales to pay for accidents” calculator, please send them along.

Editor’s comment: One of the strangest things for any legal observer to learn is tiny Madison County in the Metro-East area north of St. Louis has a legal docket devoted solely to asbestos claims. Plaintiff attorneys come from all over the United States and the world to file claims. On any given month, the Madison County asbestos docket has about 400 pages of pending claims!

Last week, the Illinois Supreme Court may have forever changed the long-standing asbestos evidence rule that has been a thorn in the side of all Defendants. In their ruling, our highest court reversed the 1987 Lipke rule barring defendants in asbestos cases from introducing evidence of Plaintiff’s other exposures. Illinois is the only state in the country to have had a rule like Lipke.

“As the instant cause presents a factually different situation, Lipke is inappropriate,” Justice Charles Freeman wrote, delivering the majority opinion ruling for the defendant in the 2004 case Nolan v. Weil-McLain. The court’s vote was five to one, with Justice Thomas Kilbride dissenting.

“In our view, Lipke stands for no more than the well-settled rules that it cites: that the concurrent negligence of others does not relieve a negligent defendant from liability,” Freeman wrote. “Lipke simply determines that evidence of the plaintiff’s other exposures was not relevant to the specific defense raised, i.e., that the plaintiff did not have an asbestos-related disease, and that he had no exposure whatsoever to the defendant’s asbestos products. In the matter at bar, however, the defendant wishes to offer evidence of the decedent’s other exposures for different purposes.”

On his website, www.icjl.org Ed Murnane, president of the Illinois Civil Justice League (ICJL), applauded the court’s decision.

“By striking down the arbitrary provisions of Lipke – the ruling that made it impossible for Illinois judges to grant a fair trial to defendants – the Supreme Court is improving the legal environment in Illinois and, finally, allowing Defendants to actually present their side of the case at trial.” Murnane feels the justices have rejected the “wholesale nature of condemning hundreds of defendants,” with the Nolan ruling.

“Today, the Court has embraced the idea that defendants dragged usually into the Madison County courthouse in Edwardsville, many named thousands of times over the past decade for products that provided very minor or little exposure to plaintiffs, actually deserve a fair day in court with rules that aren’t predisposed against them.” Murnane wrote.

Weil-McLain, an Indiana boilermaker, argued the trial court erred in applying Lipke in the suit brought by Plaintiff Nolan on behalf of her deceased husband. A jury originally awarded Nolan over $2.3 million in damages and the verdict had been upheld by the appellate court. The case will now be returned to the circuit court for a new trial.

At the time, even the original trial judge, Vermilion Circuit Court Judge Craig DeArmond, expressed doubts about Lipke. DeArmond has said that he did not feel the law and science were “in sync.”

The ruling is on the web at: http://www.state.il.us/court/Opinions/SupremeCourt/2009/April/103137.pdf.

Editor’s comment: We got news that last week there was a debate and testimony before the legislators in Springfield about a bill to seek to change Illinois law to require the work to be “the” cause and not “a” cause of a work-related medical condition. We then heard the representatives of Illinois labor bemoaned the fact that such a legal change would strip out “carpal tunnel” and other “repetitive trauma” claims for their members and other workers. We assure our readers it is potentially an accurate concern—we truly feel the current scope of coverage provided under Illinois’ implementation of the law involving repetitive trauma has effectively ended litigation of such disputes because most repetitive trauma claims are viewed as global coverage by our administrators. If the term “repetitive trauma” appears in a Commission ruling, they almost always rule the condition is work-related.

So what is wrong with the concept? Well, Illinois jobs are our biggest concern. Illinois is steaming towards 10% unemployment. Reaching that number will be a record high for the lifetimes of the vast majority of our readership. That isn’t happening by chance. We don’t feel the Illinois AFL-CIO has an abiding concern about finding more solid-paying jobs in our fair state. What is happening in Illinois workers’ compensation right now is a strong disincentive to Illinois employment.

Think this is more of the same old, same old? Well, here are two case stories we assure you are true.

1. Try the case of the chubby trucker with sore wrists. Four years ago, he started to treat for, along with lots of other things, his wrists. Numerous studies confirm one easily defined cause of carpal tunnel syndrome is obesity. Trust us; he suffers from that condition in spades. After about six months, the third of his treating doctors came up with the brilliant concept that the supposed “vibration” of the truck’s steering wheel was “a” cause of his condition and he needed CTS surgery. Never mind that the first two treating doctors and claimant himself did not attribute the condition to work—there was now a “golden diagnosis” in the file linking the condition to employment.

So what happened? Well, we weren’t handling the defense file at the time but the parties clowned around and clowned around fighting over causal connection. The trucker remained off all work for reasons we don’t understand. Three-plus years went by and the Arbitrator, who is a former Petitioner attorney, has dropped a bomb on the Illinois employer. He related the condition to whatever insidious level of “steering wheel vibration” this poor trucker had to endure. Gosh knows the steering wheel on his own automobile has to vibrate too but remember all you need in Illinois is for the work to be “a” cause. The Arbitrator has awarded over $150,000 in lost time and forced the employer to certify future surgery. The matter is now on appeal and is assigned to the most radical of the Illinois commissioners. By the time the appeals run, if the decision isn’t reversed, the employer may have to pay $200,000+ in lost time alone!

We are hoping against all hope the Commission turns this one back but try to understand how such cases make existing and prospective Illinois employers feel—the stakes in this poker game are unbelievably high. We are more and more concerned Illinois business gets to play in the game with a fixed deck full of marked cards.

And FYI, this is a classic example of poor defense handling—if you are going to fight about the need for care, get lawyers like KC&A who fight quickly so you don’t run up massive lost time exposure.

1. Our other favorite case is the central Illinois plant of a major Illinois employer you have all heard of. If you drink coffee, you have almost certainly used the product from this facility. We are at a claims meeting with the plant representatives, the third party administrator and KC&A as legal beagles. The plant manager has about eighteen claims from a union workforce of about two hundred. His concern for the TPA and our firm as his legal counsel is not one of the eighteen claims had anything to do with a traditional “accident.” He carefully pointed out there wasn’t anything unsafe about the events leading to any of the claims—every one of the claims involved “repetitive trauma” from doing normal work in a normal way. All of the workers had healthy and happy lives outside of work—they bowled, hunted and ran farms and used their elbows, hands and arms like everyone else in that part of the state. But all of them were seeking big benefits that were basically due to medical conditions related much more to advancing age than their work.

The plant manager noted all of the workers involved were over 50 years of age. They had lots of sore elbows and achy wrists which they attributed to routine factory work. All of the workers did lots of different things as part of their work—no ergonomist could or would ever point to any one task being performed in a “repetitive” fashion.

All of the workers were making claims that we have called “the Tunnels of Illinois.” By that you may recall, we feel there is more of an incidence and prevalence of carpal and cubital tunnel syndrome in this state than anywhere else on the planet. The reason for all the sore wrist and elbow claims is Illinois’ workers’ compensation system rewards the surgeon making the diagnosis by providing full payment of the cubital tunnel surgery at rates much higher than Blue Cross® would ever pay. Thereafter, the workers get a hefty bonus—as much as $60,000 in PPD for bilateral surgery that leaves less than a one-inch scar. Trust us, we have to find some way to let workers get carpal or cubital tunnel surgery without the amazing largesse that follows.

Well, about three years ago, the plant manager retired and was still making fun of the Illinois workers’ comp system.

We hope our legislators start to ask Illinois business what we need to do with workers’ comp to build more factories and plants in this state. Regardless of what the AFL-CIO says, what we are doing right now isn’t working. Please do not hesitate to provide your thoughts and comments.

Editor’s comment: Having already ponied up $170 billion to support AIG, will U.S. taxpayers have to pay for more of AIG’s tomfoolery? In the last week, we noted the following claim hit the web:

SAFECO INSURANCE COMPANY OF AMERICA and OHIO CASUALTY INSURANCE COMPANY, individually, and on behalf of a class consisting of members of the National Workers Compensation Reinsurance Pool vs. AMERICAN INTERNATIONAL GROUP, INC., AIG CASUALTY COMPANY F/K/A BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, AIU INSURANCE COMPANY, AMERICAN HOME ASSURANCE COMPANY, AMERICAN INTERNATIONAL PACIFIC INSURANCE COMPANY F/K/A AMERICAN FIDELITY COMPANY, AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY F/K/A AMERICAN GLOBAL INSURANCE COMPANY, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY F/K/A ALASKA INSURANCE COMPANY, COMMERCE AND INDUSTRY INSURANCE COMPANY, INC., GRANITE STATE INSURANCE COMPANY, ILLINOIS NATIONAL INSURANCE COMPANY, INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, NEW HAMPSHIRE INDEMNITY COMPANY, NEW HAMPSHIRE INSURANCE COMPANY, THOMAS R. TIZZIO, JOSEPH C. SMETANA, and RICHARD L. THOMAS

This action allegedly arises out of the AIG Defendants’ long-term fraudulent underreporting of workers compensation premium and evasion of related financial obligations to Plaintiffs and the class. Plaintiffs brought this action individually and on behalf of all members of the NWCRP, other than AIG and the AIG Companies, in their capacity as representative class members of the NWCRP.

The NWCRP was established in 1970 based on a concept that insurance companies writing workers compensation insurance should be able to participate in an arrangement that equitably apportions the premium, losses and expenses arising from the residual, or assigned risk, workers compensation insurance market. In general terms, the residual market is comprised of employers who have been unable to get an insurer to voluntarily provide workers compensation coverage, and coverage is “assigned” to a specific insurer who must provide coverage under rates and terms specified by law. Generally, the residual market system operates pursuant to a variety of state laws, regulations and contracts aimed at making workers compensation insurance available to all employers and, using reinsurance and related mechanisms, provides an equitable premium-based apportioning of the losses associated with residual market workers compensation policies. This system is predicated on insurance companies acting honorably and truthfully in their disclosure of annual workers compensation premium and other financial reporting. The NWCRP Class has filed the instant action to recover its damages from the AIG Officers and to ensure that the members of the NWCRP have a means of recovering their damages resulting from AIG’s underreporting from all of the AIG Defendants should NCCI be found to lack standing or the issue of NCCI’s standing remain subject to challenge by AIG.

In 2005, in the midst of federal and state investigations and ensuing enforcement action taken against AIG and the AIG Companies for false financial reporting, bid-rigging and other unlawful conduct, it was disclosed the AIG Defendants had engaged in a series of longstanding false premium reporting practices with the purpose and effect of evading state insurance taxes and residual market obligations. The revelations from this investigation confirmed AIG’s senior management, directed or caused wholly-owned and controlled AIG affiliates, to submit false and falsely certified financial statements and reports that deliberately underreported workers compensation premium information. These disclosures revealed AIG and the AIG Companies had been intentionally issuing false statements and reports for decades in order to increase earnings and obtain other valuable benefits by understating the true amount of the workers compensation premium written by the AIG affiliated companies. This false reporting activity rendered past and current public and other financial reporting for AIG and the AIG Companies inaccurate and misleading.

Please note the above allegations are taken from the complaint filed in Federal court in Chicago. We have no idea if there is any accuracy or veracity to the allegations and it will all be subject to proof. If you have thoughts and comments, please send a reply.

Editor’s comment: As hourly rates and benefits continue to soar in construction and other unions, a number of companies are trying to go non-union to survive. Once the effort is made, one may expect the unions to counterattack—the problem for litigators is what to do when that happens.

In Smart v. Local 702 Int’l Bhd. of Electrical Workers, Local 702, (07-4088, issued April 7, 2009) the Seventh Circuit Court of Appeals ruled a state antitrust claim against local union by sole proprietor of nonunion electrical contractor was completely preempted by Federal law.

The Federal appellate court found an Illinois Antitrust Act claim by the sole proprietor of a nonunion company who contracted to perform electrical work for the construction of a sports complex, against the local union whose coercive tactics allegedly caused the complex owner to terminate its relationship with that company, was subject to Garmon preemption.

The specific ruling held:

1) Plaintiff’s stated antitrust claim was preempted by federal law;

2) The Federal District Court properly dismissed Plaintiff’s unwarranted prosecution claim as he had already failed to prevail in the underlying actions; and

3) The Federal District Court properly dismissed Plaintiff’s legal malpractice claim as he did not have an attorney-client relationship with Defendant’s counsel.

The Court noted the activities described in the complaint were arguably prohibited by the National Labor Relations Act (NLRA) section 8(b)(4) prohibiting secondary boycotts. While Garmon alone did not provide a basis for complete preemption, Congress had, in a separate statute, provided a means of redress in federal court with respect to injuries resulting from a secondary boycott. The case was remanded in part for further evaluation where Plaintiff’s complaint includes allegations of secondary boycott activity for which relief is available under 29 U.S.C. sec. 187.

The link to the ruling is: http://www.ca7.uscourts.gov/tmp/MM0L9QTE.pdf <http://www.ca7.uscourts.gov/tmp/MM0L9QTE.pdf> . If you have thoughts and comments, please send them along.

Editor’s comment: The Seventh Circuit Appellate Court certainly can write lengthy, detailed, thorough, comprehensive, exhaustive and exhausting opinions. In Lewis v. Citgo Petroleum, (No. 80-1483, decided April 6, 2009), two Plaintiffs were working at the Citgo Petroleum plant in Lemont, IL. They were allegedly exposed to hydrogen sulfide gas. They lost no time from work. They received no medical care until several years later.

It is hard to imagine but their personal injury claim has now ended seven years later! The claim started in state court then moved to federal court. The experts’ testimony became the focus of the dispute where the doctors felt one Plaintiff suffered from occupational asthma and the other doctor felt a Plaintiff suffered from headaches.

In an extraordinary review of the Daubert test on consideration of expert testimony, the Seventh Circuit ruled the experts could not causally connect the conditions to the claimed exposure and upheld dismissal on summary judgment.

The Court also ruled, under Illinois law, a refinery worker’s mild anxiety, caused by alleged exposure to hydrogen sulfide in a work incident at a refinery, was not so severe as to allow recovery from the refinery on a negligent infliction of emotional distress theory. The worker’s mild anxiety, for which she had not sought treatment, caused her to recheck her work, but only minimally interfered with her everyday life.

It is our hope the Illinois judiciary and the Workers’ Compensation Commission will take a similar view of the evidentiary standards necessary to find causal connection in disputed claims. Our favorite cite from this ruling is:

As we have said: “[Q]ualifications alone do not suffice. A supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert.” Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999); see also Rosen, 78 F.3d at 318 (“[A] district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.”). Instead, to be admissible, a medical expert’s ultimate opinion must be grounded in the scientific process and may not be merely a subjective belief or unsupported conjecture. See Daubert, 509 U.S. at 589-90; Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608-09 (7^th Cir. 2000).

The link to the case is http://www.ca7.uscourts.gov/tmp/MM0JPVPO.pdf <http://www.ca7.uscourts.gov/tmp/MM0JPVPO.pdf